Supreme Court of the United States

Transcription

1 No. 16A-1191 IN THE Supreme Court of the United States DONALD J. TRUMP, et al., Applicants, v. STATE OF HAWAII, et al., Respondents. RESPONSE TO APPLICATION FOR STAY PENDING APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DOUGLAS S. CHIN Attorney General of the State of Hawaii CLYDE J. WADSWORTH Solicitor General of the State of Hawaii DEIRDRE MARIE-IHA DONNA H. KALAMA KIMBERLY T. GUIDRY ROBERT T. NAKATSUJI Deputy Attorneys General DEPARTMENT OF THE ATTORNEY GENERAL, STATE OF HAWAII 425 Queen Street Honolulu, HI Counsel for the State of Hawaii NEAL KUMAR KATYAL* COLLEEN ROH SINZDAK MITCHELL P. REICH ELIZABETH HAGERTY HOGAN LOVELLS US LLP 555 Thirteenth Street NW Washington, DC (202) *Counsel of Record THOMAS P. SCHMIDT HOGAN LOVELLS US LLP 875 Third Avenue New York, NY June 12, 2017 SARA SOLOW ALEXANDER B. BOWERMAN HOGAN LOVELLS US LLP 1835 Market St., 29th Floor Philadelphia, PA Counsel for Respondents

2 TABLE OF CONTENTS Pages TABLE OF AUTHORITIES... ii INTRODUCTION... 1 STATEMENT... 3 ARGUMENT I. THIS COURT IS UNLIKELY TO VACATE THE INJUNCTION A. The Challenge To The Order Is Justiciable Dr. Elshikh Has Standing Hawaii Has Standing The Order Is Otherwise Reviewable B. The Order Violates The Establishment Clause Mandel Does Not Exempt The Order From Meaningful Constitutional Review The Establishment Clause Forbids The President From Enacting A Thinly Veiled Muslim Ban C. The Order Exceeds The President s Authority Under 1182(f) The President May Not Use General Grants Of Authority To Override Carefully-Reticulated Statutory Schemes The Order Repeatedly Subverts Existing Statutory Authority II. THE EQUITIES WEIGH AGAINST STAYING THE INJUNCTION III. THE SCOPE OF THE INJUNCTION IS PROPER CONCLUSION i

3 TABLE OF AUTHORITIES Page(s) Cases Allen v. Wright, 468 U.S. 737 (1984) Ass n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970) Bank of Am. Corp. v. City of Miami, 137 S. Ct (2017) Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)... 26, 39 Commodity Futures Trading Comm n v. British Am. Commodity Options Corp., 434 U.S (1977) (Marshall, J., in chambers) Conkright v. Frommert, 556 U.S (2009) (Ginsburg, J., in chambers) Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973 (2017) Dayton Bd. of Educ. v. Brinkman, 439 U.S (1978) (Rehnquist, J., in chambers) Edwards v. Aguillard, 482 U.S. 578 (1987)... 25, 26 Elrod v. Burns, 427 U.S. 347 (1976) Engel v. Vitale, 370 U.S. 421 (1962)... 3 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) Franklin v. Massachusetts, 505 U.S. 788 (1992) ii

4 Gonzales v. Oregon, 546 U.S. 243 (2006) Gratz v. Bollinger, 539 U.S. 244 (2003) Honeycutt v. United States, No , slip op. (U.S. June 5, 2017) INS v. Legalization Assistance Project, 510 U.S (1993) (O Connor, J., in chambers) IRAP v. Trump, No , slip op. (4th Cir. May 25, 2017)... 31, 32 Judulang v. Holder, 565 U.S. 42 (2011) Kerry v. Din, 135 S. Ct (2015)... 19, 21, 30 Kleindienst v. Mandel, 408 U.S. 753 (1972)... passim United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) Korematsu v. United States, 323 U.S. 214 (1944) Krause v. Rhodes, 434 U.S (1977) (Stewart, J., in chambers) Lee v. Weisman, 505 U.S. 577 (1992) Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970 (9th Cir. 1986) Locke v. Davey, 540 U.S. 712 (2004) Maryland v. King, 133 S. Ct. 1 (2012) (Roberts, C.J., in chambers)... 34, 37 Massachusetts v. EPA, 549 U.S. 497 (2007) iii

5 Mathews v. Diaz, 426 U.S. 67 (1976) McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005)... 24, 27 McGowan v. Maryland 366 U.S. 420, 429 (1961) Nat l League of Cities v. Brennan, 419 U.S (1974) (Burger, C.J., in chambers) In re Navy Chaplaincy, 534 F.3d 756 (D.C. Cir. 2008) Rostker v. Goldberg, 453 U.S. 57 (1981) Ruckelshaus v. Monsanto Co., 463 U.S (1983) (Blackmun, J., in chambers)... 33, 37 Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993) Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)... 13, 24, 38 Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963)... 13, 14 Stormans, Inc. v. Wiesman, 136 S. Ct (2016) Texas v. United States, 787 F.3d 733 (5th Cir. 2015) Texas v. United States, 809 F.3d 134 (5th Cir. 2016) Town of Greece v. Galloway, 134 S. Ct (2014)... 13, 18, 24 United States Dep t of Defense v. Meinhold, 510 U.S. 939 (1993) iv

6 United States v. Witkovich 353 U.S. 194, (1957) Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 (1982)... 15, 16 Van Orden v. Perry, 545 U.S. 677 (2005)... 13, 18 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)... 23, 24 Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) Washington v. Trump, 2017 WL (W.D. Wash. Mar. 16, 2017) Washington v. Trump, 2017 WL (W.D. Wash. Feb. 3, 2017)... 5 Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017)... 6, 38, 40 Whitman v. Am. Trucking Ass n, 531 U.S. 457 (2001) Wong Wing Hang v. INS, 360 F.2d 715 (2d Cir. 1966) Zadvydas v. Davis, 533 U.S. 678 (2001)... 29, 38 Zelman v. Simmons-Harris, 536 U.S. 639 (2002) Zemel v. Rusk, 381 U.S. 1 (1965) Constitution, Statutes, Regulations, and Executive Materials U.S. Const. art. I, 8, cl , 39 8 U.S.C. 1152(a)(1)(A) U.S.C. 1182(a)(3)(B) v

7 8 U.S.C. 1182(a) U.S.C. 1182(a)(3)(B)(i)(II) U.S.C. 1182(f)... passim 8 U.S.C. 1187(a)(12) C.F.R. part Fed. Reg (May 4, 2017) Proclamation No. 2523, 55 Stat (Nov. 14, 1941) Exec. Order No. 13,780, 82 Fed. Reg (Mar. 9, 2017)... passim Exec. Order No. 13,769, 82 Fed. Reg (Feb. 1, 2017) FAM (B) H.R. Rep. No (1987) Other Authorities Barbara J. Van Arsdale et al., Federal Procedure, Lawyers Edition 3:304, Westlaw (June 2017 Update) Christine Wang, Trump website takes down Muslim ban statement after reporter grills Spicer in briefing, CNBC (May 8, 2017)... 9 Cong. Research Serv., Executive Authority to Exclude Aliens: In Brief (Jan. 23, 2017) Donald J. Trump (@realdonaldtrump), Twitter (June 5, 2017), 10 Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev (2003) Scott Johnson, At the White House with Trump, Powerlineblog.com (Apr. 25, 2017)... 9 vi

8 INTRODUCTION Almost three months ago, the U.S. District Court for the District of Hawaii enjoined provisions of an Executive Order that would have banned millions of individuals from the United States. Had the Order gone into effect, it would have separated families, disturbed countless plans for international work, research, and study, and prevented thousands of persecuted individuals from finding a safe harbor in the United States. As a result, it would have forced respondent Dr. Elshikh and numerous other Muslim residents of the State of Hawaii to endure the absence of loved ones; it would have hurt the diversity and depth of talent in Hawaii s University and workplaces; and it would have done lasting damage to Hawaii s reputation as a place of welcome and refuge These consequences, by themselves, are staggering. They are made worse by the near universal perception that the Order s travel and refugee bans were designed primarily to fulfill the President s unconstitutional campaign promise to enact a Muslim ban. And they are made worse still by the fact that the President himself has cultivated that perception. Our foundational text, the First Amendment, bars the Government from making a citizen s status in the political community dependent on his faith. The President unquestionably violates that command when he issues an Order that disproportionately burdens Muslim-Americans, while denigrating the Muslim faith and making it abundantly clear that the Order s harmful effect on Muslims is far from incidental. To date, the injunction has prevented that constitutional violation. 1

9 In doing so, it has safeguarded religious liberty and demonstrated the strength of our Constitution and the courts that protect it. Nonetheless, the Government now asks this Court to stay the injunction, asserting an urgent need to implement the bans in order to avoid irreparable harm. But the Government s own actions belie this assertion. At every turn, the Government has opted to delay rather than accelerate judicial review: After the first Order was enjoined, the Government waited a month to introduce a revised Order, with some of that delay motivated by a desire to take advantage of a favorable news cycle. When the second Order, too, was enjoined, the Government eschewed any immediate appeal or even any request for a stay, instead spending weeks relitigating the issues before the District Court. And, when the Government finally did seek relief from the Ninth Circuit, it proposed a schedule that would virtually ensure that the court of appeals would not decide the Government s stay request before the merits. These are not the actions of a Government that believes the immediate implementation of its Order is necessary to avoid irreparable harm. The Government offers no explanation for this profound disjunction between its call for urgency and its dilatory litigation conduct. Instead, the Government implicitly asks the Court turn a blind eye to the evidence that undermines its stay request, just as it explicitly asks the Court to ignore the evidence of an unconstitutional purpose that undermines the Order itself. The Court should do neither. Staying the injunction would irreparably injure respondents and thrust the country back into the chaos and confusion that resulted 2

10 when the first Order was announced. The long term consequences would be even more significant. As soon as the unconstitutional Order is implemented, our Framers greatest fears for this Nation will be realized; the Order will serve as an ominous Beacon on our Coast, warning the persecuted and oppressed of every Nation and Religion that they must seek some other haven. Engel v. Vitale, 370 U.S. 421, 432 n.16 (1962) (quoting James Madison, Memorial and Remonstrance against Religious Assessments (June 20, 1785)). The stay in this case should be denied. Likewise, the Government s request for a stay and certiorari in Int l Refugee Assistance Project ( IRAP ) v. Trump, Nos A91 and , should be denied. However, should the Court grant certiorari in IRAP v. Trump, respondents acquiesce in the Government s alternative request to grant certiorari before judgment so that the cases may be heard together. STATEMENT 1. In December 2015, then-candidate Donald Trump made the exclusion of Muslims a core plank of his presidential campaign platform. He issued a public statement calling for a total and complete shutdown of Muslims entering the United States. C.A. E.R. 59, 144 & S.E.R. 15, 156. When Mr. Trump was asked how this policy would be implemented at the border, he explained that the person seeking entry would be asked, are you Muslim?, and if they said yes, they would not be allowed into the country. C.A. E.R In an interview on March 9, 2016, he explained his rationale: I think Islam hates us * * *. [W]e can t allow people 3

11 coming into this country who have this hatred of the United States * * * [a]nd of people that are not Muslim. Stay Application Addendum ( Add. ) 57. While campaigning, Mr. Trump also decried the admission of Muslim refugees. As early as June 2015, he complained that Islamic refugees from Syria were being admitted to the United States, but Christian refugees were not. C.A. E.R In June 2016, he said his opponent would admit[] hundreds of thousands of refugees from the Middle East who would try[] to take over our children and convince them * * * how wonderful Islam is. C.A. E.R. 146 n.19. As the campaign progressed, Mr. Trump sometimes began to couch the total and complete shutdown of Muslims in different terms, characterizing it as a ban on immigration from countries where there s a proven history of terrorism. C.A. E.R But when asked in July 2016 whether this approach represented a rollback of his Muslim ban, he disagreed: In fact, you could say it s an expansion. C.A. E.R Mr. Trump explained, I m looking now at territories because [p]eople were so upset when I used the word Muslim. Oh, you can t use the word Muslim. C.A. E.R When asked on December 21, 2016, now as President-Elect, whether he had decided to rethink his plans to create a Muslim registry or ban Muslim immigration, his answer was: You know my plans. C.A. E.R On January 27, 2017, seven days after taking office, President Trump signed Executive Order No. 13,769 (the Order ), entitled Protecting the Nation From Foreign Terrorist Entry Into the United States. 82 Fed. Reg (Feb. 1, 4

12 2017). As he signed it, he read the title, looked up, and said: We all know what that means. C.A. E.R The first Order imposed an immediate, 90-day ban on entry by nationals of seven overwhelmingly Muslim countries. Add. 55, 69. The Order also suspended the U.S. Refugee Admissions Program ( USRAP ) for 120 days, lowered the cap on annual refugee admissions, and indefinitely barred Syrian refugees. Add. 70. The USRAP suspension included a targeted carve-out for refugees who were religious minorit[ies] in their home countries. Id. In an interview with the Christian Broadcasting Network on the day the Order was signed, President Trump explained that this latter provision was designed to help Christians, falsely asserting that in the past [i]f you were a Muslim [refugee] you could come in, but if you were a Christian, it was almost impossible. C.A. E.R One of President Trump s advisors was explicit about the relationship between the Order and the promised Muslim ban. In a television interview the day after the Order was signed, Rudolph Giuliani recounted: When [Donald Trump] first announced it, he said, Muslim ban. He called me up. He said, Put a commission together. Show me the right way to do it legally. C.A. E.R The first Order spurred confusion and chaos. Over 100 individuals were immediately detained at U.S. airports, and the Government revoked 60,000 visas during the first week. C.A. E.R Numerous lawsuits were filed and within a week, a Washington district court enjoined the Order s enforcement nationwide. Washington v. Trump, 2017 WL , at **2-3 (W.D. Wash. Feb. 3, 2017). The 5

13 Ninth Circuit denied the Government s request to stay the district court s injunction in a published, unanimous decision. 847 F.3d 1151, 1169 (9th Cir. 2017). 3. The Government did not appeal the Ninth Circuit s decision; instead, it decided to issue a revised Order. C.A. E.R In the words of President Trump s senior advisor, Stephen Miller appearing in a television interview on February 21, 2017 the revised Order would have the same basic policy outcome as the first, and any changes would address very technical issues that were brought up by the court. C.A. E.R As the new Order was being prepared, the Department of Homeland Security ( DHS ) issued internal memoranda severely undermining its purported national security rationale. For example, on February 24, 2017, a draft DHS report concluded that country of citizenship was an unreliable indicator of terrorist threat[s] to the United States. C.A. S.E.R. 158; see also C.A. E.R Undeterred, the White House planned to release its revised Order on March 1, 2017, but delayed the announcement to avoid undercut[ting] the favorable coverage of President Trump s speech to Congress. C.A. E.R The Order was finally issued on March 6, Exec. Order No. 13,780, 82 Fed. Reg (Mar. 9, 2017). As Mr. Miller had promised, its substance is largely unchanged from the first. Section 2(c) now bans nationals of six (rather than seven) overwhelmingly Muslim countries specifically, countries whose Muslim populations range from 90.7% to 99.8% from entry into the United States or being issu[ed] a visa for a period of 90 days. Order 2(c), 3(c); Add. 55. Individuals who are present in the 6

14 United States on the Order s effective date or who already have been granted visas or lawful status are exempt; otherwise, nationals of the six countries may escape the ban only by obtaining a wholly discretionary, [c]ase-by-case waiver. Id. 3(a)- (c). The Order also instructs the Secretary of Homeland Security to conduct a worldwide review to determine whether the President s ban should be extended to additional countries. Id. 2(a)-(b), (d)-(g). The Order retains the President s refugee ban, as well. Section 6(a) suspends all travel of refugees into the United States as well as all decisions on applications for refugee status for 120 days. Section 6(b) lowers the cap on refugees that may be admitted to the United States in 2017 from 110,000 to 50,000. Although the Order no longer contains an explicit preference for Christian refugees, it permits Administration officials to exempt and thus admit individuals as refugees on a case-by-case basis, in their discretion. Id. 6(c). 4. The issuance of the revised Order rekindled the numerous legal challenges that had been lodged against the first Order. Respondents, the State of Hawaii and Dr. Elshikh, had filed one of those suits against the original Order in the U.S. District Court for the District of Hawaii. Proceedings were stayed after that Order was enjoined, but the stay was lifted once the revised Order was announced. On March 8, two days after the second Order was announced, respondents filed a Second Amended Complaint and a motion for a temporary restraining order ( TRO ) barring implementation of the revised Order. On March 15, 2017, the District Court issued a TRO, enjoining the Government from implementing 7

15 Sections 2 and 6 of the Executive Order across the Nation. Add. 66. The court found that both Plaintiffs had standing because each alleged direct, concrete injuries to their own interests: Hawaii demonstrated two proprietary injuries stemming from the Order s effects on its University and tourism economy, and Dr. Elshikh showed that the Order frustrates his ability to freely practice his religion, raise his children in the Muslim faith, and reunite with his own mother-in-law. Add , On the merits, the court found that [a]ny reasonable, objective observer would conclude * * * that the stated secular purpose of the Executive Order is, at the very least, secondary to a religious objective of temporarily suspending the entry of Muslims. Add. 60. The court expresse[d] no view on Plaintiffs due-process or INA-based statutory claims. Add. 53 n.11. After a second hearing, on March 29, 2017, the court granted respondents motion to convert the TRO into a preliminary injunction. The court reaffirmed respondents standing and the Establishment Clause violation, and again reserved the statutory and Due Process questions. Add The court also declined to narrow the scope of the injunction, explaining that the entirety of the Executive Order runs afoul of the Establishment Clause and, in any event, the Government had fail[ed] to provide a workable framework for narrowing the scope of the enjoined conduct. Add (emphasis added). The court also noted the Government s own concession that an internal review of [vetting] procedures obviously can take place independently of the 90-day suspension-of-entry provision. Add. 22 (citing Gov t Mem. in Opp n to Prelim. Inj. 28). 8

16 The Government appealed the District Court s preliminary injunction and moved for a stay pending appeal. The Government did not ask for an immediate ruling on the stay. Instead, it proposed a month long briefing schedule under which the stay and the merits briefing would occur simultaneously. On May 15, 2017, a panel of the Ninth Circuit heard oral argument. The panel has not yet ruled on the stay request or on the merits. Nevertheless, on June 2, the Government asked this Court to issue a stay of the District Court s injunction, claiming urgency as a result of the Fourth Circuit s ruling. 5. Throughout these judicial proceedings, the President has continued to make generalized, often inflammatory, statements about the Muslim faith and its adherents. On the night that his revised Order was enjoined, President Trump publicly reiterated his view that it is very hard for Muslims to assimilate into Western culture. C.A. S.E.R. 95. Several weeks later, at a White House gathering for conservative media outlets, he said that Muslim refugees had been favored over Christians, and that his Administration would help the Christians. 1 And, until minutes before the oral argument in the related Fourth Circuit proceedings, President Trump s regularly-updated campaign website continued to feature his campaign statement calling for a total and complete shutdown of Muslims entering the United States. 2 See C.A. E.R The President has also expressed skepticism of the revised Order, his legal 1 Scott Johnson, At the White House with Trump, PowerlineBlog.com (Apr. 25, 2017), goo.gl/zexqhy. 2 Christine Wang, Trump website takes down Muslim ban statement after reporter grills Spicer in briefing, CNBC (May 8, 2017), goo.gl/j0kpai. 9

17 strategy, and the courts themselves. Just hours after the Hawaii District Court issued its nationwide injunction, the President complained to a rally of his supporters that the new Order was just a watered down version of the first one and had been tailor[ed] at the behest of the lawyers. C.A. S.E.R. 84. He added: I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first place. C.A. S.E.R. 84. In addition, he called the District Court s opinion a terrible ruling done for political reasons, and criticized the much overturned Ninth Circuit Court. C.A. S.E.R On June 5, 2017, days after the Government filed its stay application in this Court, President Trump echoed these sentiments in a series of Twitter posts championing the original Travel Ban. He decried how the Justice Dep[artment] had submitted a watered down, politically correct version * * * to S.C. He urged the Justice Department to seek an expedited hearing of the watered down Travel ban before the Supreme Court, and to seek [a] much tougher version. Finally, he claimed that [t]he courts are slow and political, but that his Administration was already EXTREME VETTING people coming into the U.S. 3 ARGUMENT The Government is not entitled to the extraordinary remedy of a stay from this Court. The Supreme Court rarely grant[s] a stay before the lower court has decided the merits, INS v. Legalization Assistance Project, 510 U.S. 1301, Donald J. Trump (@realdonaldtrump), Twitter (June 5, 2017, posts uploaded between 6:25 A.M. E.S.T. and 6:44 A.M. E.S.T.), 10

18 (1993) (O Connor, J., in chambers), and it almost always denies a stay when the lower courts have not yet ruled on that request. See, e.g., Krause v. Rhodes, 434 U.S. 1335, (1977) (Stewart, J., in chambers); see also Barbara J. Van Arsdale et al., Federal Procedure, Lawyers Edition 3:304, Westlaw (June 2017 Update) ( While an application for a stay is pending in the lower court, a similar application will normally be denied by the Supreme Court Justice. ). There is no reason to depart from that practice here. That is particularly so because granting the Government s stay and hearing the case in October, as the Government requests, would effectively grant the Government a victory on the merits. Absent the injunction, the Government will have imposed the full travel ban and most of the refugee ban before the October Term begins. The timing of the request, however, is the least of the Government s problems. In order to obtain a stay, the Government must demonstrate both that the Court is likely to vacate the injunction, and that the harm the Government will suffer absent a stay outweighs the harm a stay will inflict on respondents and the public. The weakness of the Government s case makes that impossible. See, e.g., Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers). I. THIS COURT IS UNLIKELY TO VACATE THE INJUNCTION As a preliminary matter, it is doubtful that the Court will even grant review in this case. Respondents do not dispute the fundamental importance of the underlying legal issues, which involve the breadth of religious freedom and the statutory and constitutional limits on Executive power. The underlying facts, 11

19 however, suggest that review is unnecessary. The President first asserted a need for an immediate, temporary ban almost five months ago, explaining that the ban would facilitate a review and upgrade of the country s immigration vetting procedures. In May, the Government published a notice in the Federal Register, announcing improvements to the vetting procedures worldwide. See 82 Fed. Reg (May 4, 2017). And, even after this stay application was filed, the President confirmed that the country was already engaged in EXTREME VETTING. See supra p. 10 & n.3. Thus, by the Government s own account, the need for the travel and refugee bans has passed. It would be unnecessary and wasteful for this Court to grant review of an issue that is effectively moot. See also infra pp (explaining that the existing injunctions do not prevent an upgrade of the vetting procedures). Further, if the Court does grant review, it is extremely unlikely to vacate the injunction. The Government s argument to the contrary relies primarily on its assertion that the lower court should not have reached the constitutional question, either because the challenge is not justiciable or because courts must apply a highly deferential standard of review. The Government is wrong on both counts. On the merits, the injunction must be sustained both because the Order is plainly unconstitutional and because it exceeds the President s statutory authority. A. The Challenge To The Order Is Justiciable. The Government first alleges that the injunction will be overturned because this case is not justiciable. But there is no obstacle to judicial review. Dr. Elshikh 12

20 and the State of Hawaii both have standing, and the so-called doctrine of consular unreviewability is inapplicable. 1. Dr. Elshikh Has Standing. a. Because of the Constitution s core protections for religious freedom, a policy that demeans or denigrates a person s faith necessarily inflicts an important * * * constitutional injur[y]. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 292 (2000). Thus, at least when a government establishment of religion directly affect[s] a person, the resulting spiritual or dignitary harm confers standing. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 224 n.9 (1963); Ass n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 157 (1970). Indeed, [t]he indignity of being singled out for special burdens on the basis of one s religious calling is so profound that the concrete harm produced can never be dismissed as insubstantial. Locke v. Davey, 540 U.S. 712, 731 (2004) (Scalia, J., dissenting). Accordingly, this Court has found standing even with respect to Establishment Clause injuries that might appear slight. For example, the Court has indicated that observing a benediction at one s high school graduation, Lee v. Weisman, 505 U.S. 577, (1992), encounter[ing] the Ten Commandments on Capitol grounds, Van Orden v. Perry, 545 U.S. 677, (2005) (plurality op.), and taking offens[e] at a prayer during a town board meeting[], Town of Greece v. Galloway, 134 S. Ct. 1811, 1817 (2014), are all injuries sufficient to give rise to standing. 13

21 b. Under these principles, Dr. Elshikh s standing is obvious. The Order, which is widely perceived as a Muslim ban, denigrates and demeans Dr. Elshikh s faith. It has therefore devastat[ed] Dr. Elshikh, his family, and his mosque. C.A. E.R. 94, 96, And the religious discrimination embodied in the Order directly affect[s] Dr. Elshikh in several ways. Schempp, 374 U.S. at 224 n.9. First, the Order directly impedes Dr. Elshikh s ability to reunite his family. Dr. Elshihk s mother-in-law is a Syrian national seeking an immigrant visa. C.A. E.R She had a consular interview last month at the U.S. Embassy in Lebanon, and received a letter dated May 24, 2017, informing her that her visa application requires administrative processing, which takes an average of 60 days. 4 The travel ban, if it goes into effect, would block her entry into the United States. This injury alone is sufficient to confer standing, even independent of the dignitary harm Dr. Elshikh has suffered. And the Government is incorrect that this injury is unripe because Dr. Elshikh s mother-in-law might receive a waiver. The process of seeking a waiver would undoubtedly prolong the family separation, and, in any event, denial of equal treatment resulting from the imposition of [a] barrier is itself an injury, regardless of whether it results in the ultimate inability to obtain [a] benefit. Gratz v. Bollinger, 539 U.S. 244, 262 (2003). Second, Dr. Elshikh is directly affected because he is the imam of a mosque whose religious community is damaged by the Order. Because the Order casts opprobrium on Muslims, it engenders feelings of fear and condemnation in the 4 Because this letter was received so recently, it is not yet in the record. If the Court desires, respondents can lodge a copy under Supreme Court Rule

22 members of Dr. Elshikh s mosque. C.A. E.R. 96; Moreover, at least one current member of Dr. Elshikh s mosque is a refugee, and the community is generally enriched by the presence of refugees worshipping there. Br. of Amicus Curiae Dr. Ismail Elshikh at 11, IRAP v. Trump, No (4th Cir. Apr. 19, 2017), ECF No ; C.A. E.R If the Order is implemented, Dr. Elshikh will be the spiritual leader of a denigrated and diminished religious community. c. The Government suggests that these harms to Dr. Elshikh are not cognizable because they do not result from any alleged discrimination against him. Appl. for Stay Pending Appeal at 22 ( Stay Appl. ). That is simply not true. The Order discriminates directly against Dr. Elshikh by denigrating the faith he professes, by excluding his mother in law, and by harming his mosque and its members. In other words, by targeting Muslims for exclusion, the Order denie[s] equal treatment to Dr. Elshikh himself. See Allen v. Wright, 468 U.S. 737, 755 (1984) (citation omitted). Finally, the Government attempts to dismiss Dr. Elshikh s injury by alleging that it is comparable to the one this Court held insufficient in Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 (1982). That fundamentally misunderstands Dr. Elshikh s harm in two ways. First, in Valley Forge, the plaintiffs challenged a land transfer that gave preference to a religious group. Id. at 468; see also In re Navy Chaplaincy, 534 F.3d 756, 760 (D.C. Cir. 2008) (challenge to retirement system that favor[ed] Catholic chaplains ). There is a marked difference between challenging a government action 15

23 that confers a benefit on someone else (which is at best a generalized grievance shared by all who do not receive the preference), and Dr. Elshikh s challenge to an Order that imposes burdens on himself (which is the kind of direct, personalized injury that traditionally supports standing). Second, the plaintiffs in Valley Forge alleged that they experienced psychological harm from the observation of conduct with which [they] disagree[d]. 454 U.S. at 485. Dr. Elshikh s injury is not that he simply disagrees with the Order; it is that the Order condemns his faith and harms his family and his mosque. 2. Hawaii Has Standing. Hawaii, too, has standing to challenge Sections 2 and 6 of the Order, particularly in light of the special solicitude States receive in the standing analysis. Massachusetts v. EPA, 549 U.S. 497, 520 (2007). a. First, Hawaii has standing because of the harm to its ability to recruit and retain faculty and students from overseas. The University of Hawaii has 23 graduate students, multiple faculty members, and 29 visiting faculty from the six designated countries. C.A. E.R The University has made fourteen offers of admission to graduate students located in the six countries targeted by the Order, and three of those students have accepted their offers of admission. Second Suppl. Decl. of Risa E. Dickson 3-5, C.A. Dkt. No One of those three students must be on campus by August 1, 2017, and another must be on campus by August 10, Id. 7. Classes begin on August 21, Id. 6. If the Order goes into 16

24 effect, those students will be unable to matriculate, and the University will lose the tangible and intangible benefits that their enrollment would have conferred. Second, Hawaii will lose tax revenue as a result of the drop in tourism. See Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1303 (2017) ( lost tax revenue is an Article III injury). As the District Court found, preliminary data suggests that during the short period of time that the first Executive Order was in place, the number of visitors to Hawaii from the Middle East fell. Add. 10, More recent numbers on the Hawaii Tourism Authority s website confirm this trend. C.A. Answering Br. at 20 n.6 (citing Visitor Arrivals from Middle East & Africa, Hawaii Tourism Authority, goo.gl/tm6krh). That financial harm alone is more than sufficient to establish standing. See Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017) ( [E]ven a small amount of money is ordinarily an injury. ). Third, the Order prevents the State from resettling refugees within its borders. C.A. E.R Hawaii has already accepted three refugees this year, and it intends to accept more. See Decl. of Lawrence E. Bartlett, C.A. E.R Refugees pay taxes and contribute to Hawaii s economy. Moreover, by blocking the admission of refugees, the Order deprives the State of financial assistance it would otherwise receive from the Federal Government for each refugee it admits. 45 C.F.R. part 400. And by preventing the State from carrying out its resettlement program, the Order inflicts a concrete injury on the State as sovereign. Finally, Hawaii has standing because the Order effects a federal establishment of religion. A core function of the Establishment Clause is to 17

25 protect[] States * * * from the imposition of an established religion by the Federal Government. Zelman v. Simmons-Harris, 536 U.S. 639, 678 (2002) (Thomas, J., concurring) (emphasis added); Van Orden, 545 U.S. at 731 n.32 (Stevens, J., dissenting, joined by Ginsburg, J.). The Clause has long protected the sovereign right of states to include protections for religious freedom within their state constitutions. Town of Greece, 134 S. Ct. at 1836 (Thomas, J., concurring) ( the decision to establish or disestablish religion was reserved to the States (emphasis added)). Hawaii s Constitution contains such a provision, C.A. E.R. 141, ; if the Order goes into effect, it will undermine that guarantee and inflict precisely the sort of injury the Establishment Clause was created to prevent. b. The Government s main response (at 21) is to dispute whether the State s proprietary injuries are themselves sufficient to create standing. That is beside the point, given the direct harms the Order inflicts on the State s sovereign interests. In any event, the Government is wrong. In McGowan v. Maryland, plaintiffs allege[d] only economic injury to themselves without any infringement of their own religious freedoms. 366 U.S. 420, 429 (1961). While that was not enough to make out a free exercise claim the only part of the opinion cited by the Government here (at 22) it was enough for Establishment Clause standing. That was because the Framers feared an establishment of religion not just because it would interfere with religious exercise but because of its tendencies to political tyranny and subversion of civil authority. McGowan, 366 U.S. at

26 3. The Order Is Otherwise Reviewable. The Government also claims (at 20) that the doctrine of consular nonreviewability blocks judicial review of the Order. This Court has never embraced that doctrine, but, even as articulated by lower courts, the doctrine has no application here. Plaintiffs are not challenging an individual consular decision. Cf. Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999); Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir. 1986). They are challenging a broad policy that injures American citizens and States. This Court has not hesitated to review Government actions involving the issuance and denial of visas when the rights of Americans are implicated. Kerry v. Din, 135 S. Ct (2015); Kleindienst v. Mandel, 408 U.S. 753 (1972). Moreover, the Government s assertion of consular nonreviewability would mean that even an Executive Order expressly banning all Muslims from the country, or banning all members of a particular race, would be entirely insulated from judicial review. That simply cannot be. While deference to the political branches in the arena of immigration is appropriate, deference does not mean abdication. Rostker v. Goldberg, 453 U.S. 57, 70 (1981). B. The Order Violates The Establishment Clause. Even when it reaches the merits, the Government s primary argument is that the injunction must be vacated because courts should not engage in any meaningful analysis of the Order s constitutionality. The Government urges that the Order must be upheld because it has asserted a facially legitimate and bona fide rationale for the bans. Mandel, 408 U.S. at 770. That is incorrect. 19

27 1. Mandel Does Not Exempt The Order From Meaningful Constitutional Review. a. According to the Government, courts must evaluate the Order under the highly deferential standard of review announced in Mandel, a case involving an individual exclusion decision. This argument suffers from the same defect as the Government s assertion of consular nonreviewability: It assumes the deference owed to an Executive s decision to exclude an individual alien is equally applicable to a sweeping Executive policy excluding millions of aliens. That is a dubious proposition, given that the Court has long distinguished between the nearly absolute deference required for exercises of prosecutorial discretion and the far more limited deference owed to broad Executive Branch policymaking. See, e.g. Whitman v. Am. Trucking Ass n, 531 U.S. 457, 475 (2001) ( [T]he degree of * * * discretion that is acceptable varies according to the scope of the power congressionally conferred. ). b. More importantly, the Order cannot pass muster even under Mandel. In Mandel, the Court declined to consider the constitutionality of an Executive decision in the immigration context because the Government had offered a facially legitimate and bona fide rationale for its exercise of discretion. 408 U.S. at 770. The Government attempts to read the words bona fide out of the opinion, urging that the Mandel standard is met whenever it offers a plausible rationale that the challenged policy could serve. But Mandel listed two requirements, not one. Even when the Government has offered a facially legitimate reason for an immigration decision, the Court must still conduct a more thorough review of the 20

28 constitutionality of the policy if the plaintiff is able to make an affirmative showing of bad faith. Din, 135 S. Ct. at (Kennedy, J., concurring in the judgment). Here, Plaintiffs are easily able to make that showing. There is a mountain of extrinsic evidence, mostly in the form of statements by the President himself, indicating that the stated rationale is a sham. That includes multiple public statements from Candidate Trump describing Islam in general and Muslim refugees in particular as a threat, and a formal, published campaign statement calling for a complete ban on Muslim immigration. It also includes statements by the Candidate explaining that in response to criticism he has decided to stop talking Muslim and start talking territory, as well as his clarification that this is not a roll back but, if anything, an expansion of his promised Muslim ban. And it includes numerous post-inauguration statements in which the President has emphasized that he is fulfilling his campaign promises, admitted a desire to favor Christian refugees over Muslims, and acknowledged that the current Order is largely an attempt by his lawyers to water[-]down the travel ban he originally proposed in order to make it politically correct. See supra p. 10. c. The Government contends that Mandel requires courts to ignore all of this evidence. In its view, so long as the policy set out within the four corners of the Order passes rational basis review, the Court may not even begin to test or balanc[e] the policy against the constitutional rights of United States citizens. Stay App. 26 (quoting Mandel, 408 U.S. at 770). That is a remarkable proposition. It means that a President may adopt any facially neutral policy that could serve a 21

29 national security interest, even if he has admitted that he is actually pursuing an unconstitutional aim. For example, as the Government has acknowledged, under its reading of Mandel, the President may announce a desire to ban Jews, and then bar all immigration from Israel by citing national security concerns. Oral Arg. at 1:55:20 to 1:58:00, IRAP v. Trump, No (4th Cir. May 8, 2017). That admission alone demonstrates why the Government s position is untenable, particularly given that the Founders recognized that excluding immigrants of a dissenting faith was a prime means of establishing a religion. See Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, (2003). And it is not only the freedom of religion that is threatened by the Government s view of Mandel. Presidents could enact policies designed to further almost any unconstitutional aim by cloaking the policy in neutral terms and a national security rationale. A white nationalist could call for a whiter America, and then bar immigrants from Africa. An anti-gun activist could call for a halt on gun ownership, and then bar all imports from the countries that make gun components. So long as the Executive could offer a facially legitimate reason for each of these actions, courts would be powerless to intervene. That is not the law. The Government s primary source for its view is a misguided analysis of the Mandel dissent. Specifically, the Government alleges (at 27) that the Mandel majority implicitly rejected any consideration of extrinsic evidence that a neutral rationale is shielding an unconstitutional purpose, because 22

30 Justice Marshall unsuccessfully urged a review of such evidence in his Mandel dissent. That is wrong. In Mandel, there was no comparable evidence that the Executive had an unconstitutional ulterior motive for its action. The Mandel plaintiffs challenged the Executive s decision to deny a waiver of exclusion to a revolutionary Marxist professor. 408 U.S. at 756. The plaintiffs did not dispute that, without a waiver, the professor would be excluded under a statutory bar on the admission of communists. And they conceded the constitutionality of that statutory bar. See id. at 767. Their only claim was that the Executive s stated reason for denying the waiver was not sufficiently compelling to justify the harm to their First Amendment rights that would occur if the waiver was denied. See id. at Thus, when Justice Marshall invited his colleagues to peek behind the Government s stated rationale, he meant that they should analyze the facts on the ground to determine whether they really supported a need to exclude the professor. Id. at 778 (Marshall, J., dissenting). And his colleague s decision to decline that invitation signified nothing more than general judicial reluctance to second guess the foreign policy analysis of the political branches. That is very different from holding that a Court must ignore a mountain of evidence that the asserted rationale is mere camouflage for an unconstitutional purpose. For that reason, at least in the face of an affirmative showing of bad faith like the one here, courts must be permitted to look behind a national security rationale in order to consider the constitutionality of an Executive Order. See W. 23

31 Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637, 640 (1943) (explaining that the prohibition on government actions that make an enemy of any * * * creed applies even when the Government invokes a national security rationale). 2. The Establishment Clause Forbids The President From Enacting A Thinly Veiled Muslim Ban. Once the Government s protestations of unreviewability are swept aside, there can be no doubt that the Order is unconstitutional. Under the Establishment Clause, the Government cannot denigrate * * * religious minorities, signal disfavor toward a faith, or suggest that [one s] stature in the community [is] in any way diminished because of one s religion. Town of Greece, 134 S. Ct. at 1823, The Order runs afoul of those commands because an objective observer would conclude that its primary purpose is to fulfill the President campaign promise to impose a Muslim ban. See McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 862 (2005). The voluminous extrinsic evidence from both before and after the President s inauguration is virtually dispositive in and of itself. See supra pp. 3-6, And that evidence is reinforced by the operation of the Order and the Government s own conduct since the Order was enjoined. See Santa Fe Indep. Sch. Dist., 530 U.S. at 308. For example, the Order purports to pause immigration from certain Muslimmajority countries in order to give the President time to review vetting procedures. But the Order applies to nationals of the targeted countries, regardless of whether they currently live in a country with excellent vetting procedures. And it does not apply at all to long-term residents of the targeted countries who are not nationals. 24

32 Meanwhile, the Order pauses all refugee admissions worldwide, but cites only two examples of terrorist attacks attempted by refugees, one of which involves a refugee who entered the country as a toddler. And, while the Order asserts that both the travel and the refugee bans are necessary to prevent dangerous individuals from entering the country under the allegedly inadequate vetting procedures that are currently in place, the Government has readily agreed to permit the ban to remain enjoined until at least October in the event its stay request is denied. A reasonable observer confronted with these facts, in the context of the numerous public statements from the President and his Administration, would inevitably conclude that the asserted neutral purposes of the Order are at best secondary and that the real aim is the enactment of a policy that is as close to the President s promised Muslim ban as possible. See Edwards v. Aguillard, 482 U.S. 578, 594 (1987) (finding an Establishment Clause violation where the primary purpose was religious, notwithstanding that the act s stated purpose was secular). The Government tries to discourage this Court from that conclusion, observing that the policy does not ban all Muslims, and that it bans some non- Muslims. But the President may not evade allegations of religious discrimination by being over or under inclusive in his exclusions. So long as an objective observer would conclude that the President targeted this set of countries and refugees in general as an (albeit imperfect) means of excluding Muslims, an Establishment Clause violation has occurred. See, e.g., Stormans, Inc. v. Wiesman, 136 S. Ct. 2433, (2016) (Alito, J., dissenting from denial of certiorari) (discriminatory intent 25

33 suggested where the effect of the regulations in their real operation meant that the burden they impose fell almost exclusively on those of particular faiths). The Government also warns (at 30-31) that doubting the Order s stated rationale will embroil the courts in judicial psychoanalysis and endanger executive privilege. Hardly. The Establishment Clause inquiry turns on the apparent purpose and effects of a policy, not what is contained in the President s heart of hearts. The President s actual views towards Islam are irrelevant. What matters are his numerous public statements suggesting that Muslims are dangerous and should be excluded from this country, and his repeated suggestions that this Order is designed to further that goal. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993) ( There are, of course, many ways of demonstrating that the object or purpose of a law is the suppression of religion or religious conduct. ); Edwards, 482 U.S. at 595 (considering an act s historical context and the specific sequence of events leading to [its] passage ). Nor does the District Court s consideration of the President s campaign statements somehow throw open the doors to judicial examination of every illconsidered statement made on the campaign trail and later retracted. The statements here were repeated, and they were public. There was no pre- or even post-inauguration retraction. To the contrary, the statement calling for a complete shutdown of Muslim immigration remained on the President s frequently updated campaign website until minutes before the Fourth Circuit oral argument. Whether campaign statements lacking some or all of these features would be probative is a 26